Opinion
Crim. File No. 99-79 (PAM/JGL), Civ. File No. 01-524 (PAM)
June 20, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Charles Lemon's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the reasons discussed below, Petitioner's Motion is denied.
BACKGROUND
On March 24, 1999, Petitioner was indicted by a United States Grand Jury for the District of Minnesota on two counts: (1) possession with intent to distribute 203 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1); and (2) felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). On September 13, 1999, a jury found Petitioner guilty on both counts. On February 8, 2000, this Court sentenced Petitioner to twenty years' imprisonment on Count 1 and ten years' imprisonment on Count 2, to be served concurrently. Petitioner appealed to the Eighth Circuit, which affirmed his conviction and sentence. United States v. Lemon, 239 F.3d 968 (8th Cir. 2001).
Petitioner originally filed a pro se "Petition for Right of Review Pursuant to Title 5, United States Code, Section 702." Because Lemon sought to vacate, set aside, or modify his sentence, his submission was treated by this Court as a Petition pursuant to 28 U.S.C. § 2255 and was denied. (July 24, 2001, Mem. and Order at 2.) A subsequent pro se motion for reconsideration of that Order was denied. (Sept. 11, 2001, Mem. and Order at 1.) However, the Court noted that the denial did not necessarily preclude Petitioner from filing a "first" petition captioned as a motion for habeas corpus pursuant to § 2255. Petitioner subsequently filed the instant Motion, alleging that he was provided with ineffective assistance of counsel and that 18 U.S.C. § 922(g), making it unlawful for a felon to be in possession of ammunition that has traveled in interstate commerce, is unconstitutional under current Commerce Clause analysis.
DISCUSSION
A. Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Petitioner must show that: (1) his counsel's representation fell below an objective standard of reasonableness; and (2) but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant questioning the effectiveness of his counsel must clear a substantial hurdle because courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id at 689. Additionally, a court need not address both components of the inquiry if the defendant makes an insufficient showing on one. Id. at 697.
Petitioner argues that his counsel: (1) was without authority to stipulate to the nature of the controlled substance; (2) was without authority to stipulate to the jurisdictional element of one of the offenses; (3) was ineffective at sentencing; and (4) violated Petitioner's right to due process under the Fifth Amendment and his right to confrontation under the Sixth Amendment. It is unnecessary to consider Petitioner's arguments at length. Counsel's decision to stipulate to the material seized and other facts is well within the range of reasonable professional assistance. See Williams-Bey v. Trickey, 894 F.2d 314, 316 (8th Cir. 1990) (noting that matters of trial strategy and tactics generally do not constitute ineffective assistance of counsel, unless a tactical choice is wholly without reason); Edgemon v. Lockhart, 768 F.2d 252, 255 (8th Cir. 1985) (holding that counsel's decision to stipulate to a witness' police statement rather than deposing the witness was a trial tactic that did not constitute ineffective assistance); Sellman v. United States, 92 F. Supp.2d 475, 480 (D.Md. 2000) (stating that stipulation is a matter of trial tactics entitled to a presumption of correctness).
Petitioner merely contends that he did not understand the legal import of the term "stipulation." The record undermines contention. Four stipulations were read into the record during Petitioner's trial with Petitioner present. (Tr. at 218-19.) Petitioner objects to stipulation number two, acknowledging that "[t]he .45 caliber ammunition which was admitted into evidence was manufactured outside of the State of Minnesota and traveled in interstate commerce." (Tr. at 218.) Additionally, Petitioner objects to stipulation number four, acknowledging that the substance "seized from 4900 Knox, apartment 4, Minneapolis, Minnesota . . . was tested by a chemist and was found to be cocaine base or crack cocaine." (Tr. at 219.) Regardless of whether Petitioner knew the meaning of the word "stipulation," the language of the stipulations leaves no doubt as to their contents or ramifications.
Similarly, Petitioner's claim that his attorney was ineffective at sentencing and that his Fifth and Sixth Amendment rights were violated is meritless. Petitioner argues that his counsel failed to argue at sentencing that the substance at issue was not cocaine base. In light of the stipulation to that effect, however, it is highly unlikely that any such argument would have altered the outcome of the sentencing. Petitioner then asserts that his due process rights and his Sixth Amendment right to confront witnesses were violated because his counsel was ineffective and made the aforementioned stipulations. Because the Court holds that counsel's decision to make these stipulations was not unreasonable, Petitioner's Fifth and Sixth Amendment rights were not infringed.
B. Constitutionality of 28 U.S.C. § 922(g)
Petitioner also claims that recent Commerce Clause jurisprudence, including United States v. Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848 (2000), renders 28 U.S.C. § 922(g) unconstitutional. As an initial matter, the Government argues that Petitioner's Motion on this ground is procedurally barred.
Relying on Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994), the Government contends that constitutional issues that were not raised on direct appeal cannot be raised on a § 2255 motion unless the movant demonstrates "cause" for the procedural default and "prejudice" from the failure to appeal the issue directly. According to the Government, Petitioner has failed to establish either "cause" or "prejudice." Petitioner, on the other hand, maintains that the law he now relies on was not available at the time of his appeal to the Eighth Circuit.
Petitioner filed a notice of appeal to the Eighth Circuit on February 15, 2000, and filed his appellate brief on April 17, 2000. Both Morrison and Jones were announced in May 2000, after Petitioner's notice of appeal and brief were filed. Thus, Petitioner is correct that there is cause for not raising the issue on direct appeal and that he would be prejudiced if he were not allowed to present his argument at this time. Nevertheless, on the merits, Petitioner's argument is unavailing. The Eighth Circuit has repeatedly considered and rejected similar arguments. See, e.g., U.S. v. Shepherd, 284 F.3d 965, 968 (8th Cir. 2002) (holding that a defendant's argument that § 922(g) is unconstitutional was "without merit"). It is sufficient, under the Commerce Clause, that the ammunition Petitioner possessed traveled across state lines at some point. Id.
CONCLUSION
For the foregoing reasons, and upon all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Clerk Doc. No. 98) is DENIED.